Another Kind of Property Rights?

21 polo ponies die suddenly; an investigation reveals that a "simple"
mistake in compounding the vitamins given to the animals so that they will
race better caused the tragedy. Days later, a memorial service is held for
them.

Several large auto insurers in Michigan announce that they will offer, at no
extra cost, coverage for companion animals who are injured or killed in car
accidents. This is different than traditional separate pet insurance
policies, which often cost more than $30 a month.

These two recent stories bring up a question that-were it not so
serious-could be considered a kind of parlor game among attorneys and others
interested in animal law: is it necessary to abolish the status of animals
as property in order to accomplish the goal of improving their lives?

If you are reading this blog, you probably know that under Anglo-American
law, animals are personal property, similar to the chair you are sitting in
or the laptop I'm using to type this blog. The two examples above-as well as
countless others-belie this notion. As far as the current treatment of
animal "property" by the law, consider anti-cruelty laws; pet trusts; pet
custody disputes; federal regulations (honored in the breach, unfortunately)
requiring non-human primates in laboratories to be provided with
environmental enrichment; the requirement that state and local disaster
planning agencies provide for companion and service animals as a condition
of receiving federal funds.

It doesn't take an animal rights philosopher or legal scholar to conclude
that animals are, at the very least, a special and different kind of
property.

This status has had serious repercussions in efforts to improve the lives
of animals, whether it's called animal welfare, animal rights, animal
protection, abolitionist theory or another label. Among other drawbacks, an
animal may not sue on his or her own behalf (with an appropriate human
guardian's assistance); most people who desire to bring a lawsuit on their
own behalf are stymied; and the injury or death of an animal (and I'm
referring primarily to companion animals here), judged by standard property
law damages, yields pitifully small amounts of money and, with few
exceptions, no ability for the human guardian (let alone the animal herself)
to recover damages for emotional distress, loss of companionship and the
like.

Is it necessary to advance the cause of animals, that their property
status be eliminated? A very selective, cursory and un-nuanced outline
follows, with brief reviews of four of the many scholars who have written on
the topic presented.

Steven Wise uses the image of a "Great Legal Wall" that has "divided
humans from every other species of animal in the West. On one side, every
human is a person with legal rights; on the other, every non-human is a
thing with no legal rights." In Drawing the Line: Science and the Case for
Animal Rights, Wise sets forth a strategy for changing the property
categorization, with what he terms a "modest" proposal, starting with
allowing "legal personhood" to great apes and bottle-nosed dolphins.

Gary Francione is even more emphatic. His position is captured in the
following interview: "If the law regarding animals is to change, it is
necessary to eradicate the property status of nonhumans. But it is folly to
look to the legal system as playing a leading role in any such change."
..."If, however, we did accord animals this one right not to be treated as
property, we would be committed to abolishing and not merely regulating
animal exploitation...If we accepted that animals have the right not to be
treated as our property, we would stop-completely-bringing domestic animals
into existence. I am not interested in whether a cow should be able to bring
a lawsuit against a farmer; I am interested in why we have the cow in the
first place."

On the other hand, some commentators consider the better approach to be
modifying the concept of property to better serve the interests of animals.
One commentator has called for a category of "sentient property."

David Favre has written on this issue, framing it as the dilemma posed by
giving personhood status and rights to animals who are not fully autonomous.
Favre proposes "equitable self ownership for animals", an "intermediate
ground between being only property and being freed of property status, where
the interests of animals are recognized by the legal system but the
framework of property law is still used for limited purposes." "The
(self-owned) animals' interests are looked after by human guardians whose
duties are like the already well defined legal concepts of anti-cruelty laws
and the parent-child relationship."

Cass Sunstein also has proposed revisions to the relationships between
humans and animals which do not repudiate the existing property status.
Writing in "Animal Law", Vol. 8, page i (2002), Sunstein argues that "an
enormous amount of good can come" to improve animals' lives, by taking
advantage of existing laws, expanding the category of humans that can sue on
behalf of animals, and creating "a private right of action on behalf of
animals, who would be the main plaintiffs, to vindicate their
rights...against those who have violated them."

The discussion continues, and will continue to engender much passion as
well as much creative, innovative thinking. This summer, one of the fellows
at the ASI's Human-Animal Studies Fellowship, will no doubt grapple with
these concepts and arguments. Kris Weller, a lawyer and PhD candidate at the
University of California Santa Cruz is doing her research on "Legal
Personhood, Animal Advocacy, and Human-Animal Relationships."

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